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Addressing Sexual Harassment Law’s Inadequacies in Altering Behaviour and Preventing Harm: A Structural Approach


Elizabeth Shi and Freeman Zhong

Section 3(c) of the Sex Discrimination Act 1984 (Cth) provides that one object of the Act is ‘to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational organisations and in other areas of public activity’. This article argues that the Act, in its current form, is not adequate for achieving that object for two reasons: first, its operative provisions reflect a normative principle that has, as its aim, the compensation of harm but not the prevention of future harm; and second, it fails to recognise some systemic harms caused by sexual harassment. The article proposes a structural approach to workplace sexual harassment regulation, which involves a positive duty for organisations to take reasonable steps to prevent sexual harassment and a regulatory framework aimed at putting in place the necessary motivations and incentives to ensure compliance with that duty. The article draws on insights from regulatory theory to explain how this regulatory approach can better serve the object of eliminating sexual harassment so far as is possible.

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(2020) 43(1) UNSWLJ 155: